Conversations With Two Chief Judges

By Matthew J. Dowd

Wiley Rein, LLP

The Court of Appeals for the Federal Circuit has had and will continue to have a substantial impact on the patent reform dialogue. In early and mid-March, MIB sat down and talked separately with then-Chief Judge Paul R. Michel, who retired at the end of May 2010, and Chief Judge Randall R. Rader, who assumed the position of Chief Judge in June 2010. Chief Judge Michel was appointed to the Federal Circuit in 1988, and Judge Rader was appointed in 1990. Both Chief Judge Michel and Chief Judge Rader worked in Congress prior to their appointments as judges. The interviews were conducted by Matthew J. Dowd, who is an attorney at Wiley Rein LLP, a former clerk to Chief Judge Michel and a former student of Chief Judge Rader.

MIB: Turning to patent reform specifically, as you are aware, an amendment to the Senate patent reform bill was recently released. That bill and versions of it have been percolating since at least 2005. In that time, much has changed in the case law of the Federal Circuit and the Supreme Court. It seems to me that the natural common law process continues to address many concerns that industry groups or others have about the patent system. Is there a need for patent reform?

RADER: As you point out, the common law process seems to be quicker than the legislation, doesn't it? It's been five years, maybe more, since the patent reform effort has been underway, and during that period of time, we've seen Seagate, for instance, which has completely overhauled the law of willful infringement. And that's only one of many examples to be used to show that the courts do tend to respond to the needs of the system through the decisional process.

MICHEL: I struggle a little bit with the phraseology of "patent reform" because, if you call a legislative proposal "patent reform," the insinuation is that it's improving the patent law. But it may simply be changing it. It's even possible that a given legislative proposal could change the law in a very negative way. So, is that really something you should call reform or just revision?